Plaintiff Lisa Good ("Good"), filed suit against Defendant, her former employer MMR Group, Inc. ("MMR"), alleging sexual harassment and discrimination in violation of Title VII and KRS §§ 344.010 et seq. Defendant has moved for summary judgment on each of Plaintiff's claims for hostile work environment, constructive discharge, outrageous conduct and/or intentional infliction of emotional distress, and punitive damages. In response, Plaintiff has withdrawn her claim for outrageous conduct and/or intentional infliction of emotional distress, but contends that Defendant's motion as to her remaining claims [*2] should be denied. The Court will consider each in turn.

I.

HN1For the purposes of deciding this motion, in which summary judgment is sought by the employer, the Court must assume all facts alleged by the nonmovant employee to be true. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 747, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998). Plaintiff began working for Defendant in October or November 1998 as a "helper/laborer" at MMR's construction site in Louisville. Upon commencing her employment, Plaintiff was provided with, read, and initialed a copy of Defendant's "Sexual Harassment Policy Statement." This document defined sexual harassment and set forth the following procedure for reporting violations of such: "Any complaint or act of discrimination or harassment noted by any employee must be reported to our EEO Officer immediately," and "No attempt to handle matters of this nature should be attempted by anyone other than the EEO Officer." At the bottom of the form was listed the name of the Equal Opportunity Officer, Michael Buvens, and a contact telephone number for him at MMR's headquarters in Baton Rouge, Louisiana.

Plaintiff was the sole female in her work [*3] crew and almost immediately was exposed to sexually explicit language and gestures by her coworkers. Within weeks of beginning her assignment, someone painted on the wall of a tool trailer where employees met and ate a picture of a nude woman fellating a nude male. After several days, Plaintiff informed one of her supervisors she was offended by the picture, and he had it removed. In addition, Plaintiff was often the specific target of her coworkers' harassment. Starting in early November, one employee asked Plaintiff on multiple dates, to which she repeatedly refused, and he painted her name on the wall of a portable restroom. Soon after Thanksgiving, another coworker told Plaintiff he had something for her, and then hung an object intended to resemble a penis in the tool trailer. During the first week of January, when all of the workers were assembled in a morning meeting to receive their assignments, an MMR foreman told Plaintiff to work for a specific individual that day and "do whatever they need," to which this person instructed her, loud enough for all present to hear, "suck my dick." In mid-January, another worker saw plaintiff smoking a cigarette, and made vulgar remarks to [*4] her about oral sex.

Plaintiff was also verbally threatened with physical violence on more than one occasion. In mid-January, an MMR foreman witnessed Plaintiff being harassed by a coworker. The foreman told Good to hit her coworker if he continued, and the coworker responded that if Plaintiff did so, he would "kick her in the nuts." One week later, a coworker asked another coworker, in reference to Plaintiff, "do you treat that girl like a nigger? I do." And finally, in February a different coworker pointed a welding instrument at Plaintiff, and stated "what the fuck are you looking at nigger?" Regardless of the obvious racial connotations of these statements, Plaintiff believes this abuse was directed towards her because she was the only female on the work crew.

The day after the last incident with the welding gun, Plaintiff's husband came to the work site to confront those who were harassing his wife. He was stopped by a foreman, and led to speak to the MMR superintendent, who told Plaintiff's husband: "this is the way things are on a construction site" and "we don't want any problems and will address the issue." Neither this exchange, nor any of the other events witnessed by MMR [*5] personnel at the Louisville site, initiated any remedial action to address the harassment of Plaintiff.

Representatives at Defendant's Louisiana headquarters first learned of Plaintiff's situation late in the afternoon on Tuesday, February 16, 1999. On that day, at 4:15 PM central time, a member of MMR's personnel department, Christy Trotter, received a phone call from Glenn Hayes, a journeyman electrician employed by MMR at the Louisville site. Hayes was calling to request a transfer for reasons unrelated to this case, and during this conversation mentioned to Trotter the harassment of Plaintiff. Trotter transferred Hayes to Michael Buvens, Defendant's designated EEO Officer. Buvens interviewed Hayes about specific employees and incidents, and asked Hayes to have Plaintiff call him in Baton Rouge. Hayes passed on this request, and Plaintiff called Buvens about twenty minutes later. Buvens then interviewed Plaintiff about her situation, and took extensive notes. Buvens told Plaintiff he would begin investigating her claims the next morning, February 17, and Plaintiff informed Buvens she was taking that day off for a dental appointment.

On Wednesday, February 17, at the behest of [*6] Buvens and Rodi Rispone, MMR's General Counsel in Baton Rouge, the Project Manager in Louisville met with the four individuals Plaintiff had identified to Buvens as her harassers. Three of these persons denied any improper conduct towards Plaintiff. The fourth, named as the person who made the offensive statement during the morning meeting in January, admitted that he had done so. Later that day, Buvens called Plaintiff to ask what remedy she desired. She mentioned a transfer to a site in Missouri where she could be trained as an electrician, but also said that she had recently begun an expensive dental procedure, and could not leave for some time.

The next day, Thursday, February 18, a lawyer for Plaintiff contacted Buvens and Rispone, indicated Plaintiff wanted to remedy the situation as soon as possible, and would call back the next day with additional proposals. Buvens and Rispone informed Plaintiff she would remain on paid leave through Friday, February 19. On Monday, February 22, Defendant terminated the employee who admitted harassing Plaintiff. During this same week all other employees at the Louisville site were verbally warned that inappropriate sexual or racial conduct [*7] would be grounds for immediate termination. On Wednesday, February 24, Defendant received a letter and affidavit from Plaintiff's counsel. In her affidavit Plaintiff reiterated the allegations already provided to Buvens, as well as an additional complaint against a fifth named individual. In her letter Plaintiff also offered two proposed remedies: 1) paid leave until her relocation in Missouri, a raise from $ 12.00 to $ 16.00 per hour, paid training and time off to become an electrician, and a $ 25,000 relocation package; or 2) a $ 60,000 lump sum payment.

By Thursday, February 25, the four remaining coworkers Plaintiff had named as her harassers had either been transferred by Defendant to other locations, or had quit. On that same day, Defendant informed Plaintiff by letter that it believed it had corrected all alleged problems, and requested she return to work the next day, Friday, February 26, or Defendant would assume she had voluntarily quit, and provide two weeks severance pay. On March 5, Plaintiff's counsel responded by letter that Defendant's letter of February 25 had been received after close of business hours, and thus the request that she return to work the next day was [*8] untimely, and that Defendant could not assure a safe workplace as some of her harassers were still working in Louisville. This litigation followed.

(1) she is a member of a [*9] protected class; (2) she was subjected to unwelcomed sexual harassment; (3); the harassment was based on her sex; (4) the harassment unreasonably interfered with her work performance and created a hostile work environment; and (5) [Defendant] 'knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.'

Blankenship, 123 F.3d at 872 (quoting Fleenor v. Hewitt Soap Co., 81 F.3d 48, 50 (6th Cir. 1996)). The first four elements of the Blankenship standard appear to be satisfied, and Defendant does not contend otherwise. Thus, Plaintiff's hostile work environment claim turns on the fifth element, which examines an employer's knowledge of the harassment and its efforts to remedy the situation. " HN4When an employer responds to charges of coworker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known." 123 F.3d at 873. Defendant essentially makes two arguments: (1) Plaintiff failed to use established procedures for reporting sexual harassment, and (2) Defendant, in any [*10] event, promptly implemented corrective action. Plaintiff alleges that Defendant knew or should have known of the abuse to which she was subjected for months, in the presence of her Louisville supervisors, before Buvens received Hayes' phone call and undertook remedial action.

A.

Plaintiff is essentially arguing that the knowledge of relatively low-level foremen onsite in Louisville be imputed to Defendant's representatives in Louisiana specifically charged with the responsibility of handling sexual harassment complaints. In this way, Defendant could be responsible for the negligence of its employee in failing to report an incident. The Court disagrees that liability can or should be extended in this manner. Plaintiff's proffered rule would render Defendant's reporting procedures irrelevant, a result contrary to Supreme Court precedent. In Burlington Industries the Court emphasized that the enforcement of established anti harassment policies -- and aggrieved employees' failure to utilize these reporting procedures -- is an affirmative defense that may shield a company from liability:

HN5An employer is subject to vicarious liability to a victimized employee for an actionable [*11] hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages . . . . The defense comprises two necessary elements: (a) that the employer exercise reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

524 U.S. at 765. Plaintiff accurately notes that this affirmative defense was developed in the context of supervisor, and not coworker, harassment. Thus, Plaintiff argues, Defendant may not avail itself of the affirmative defense in response to her claim for coworker harassment.

The Court is unaware of any cases that support Plaintiff's position, and not surprised by this fact. Plaintiff's argument is backwards, and would lead to illogical outcomes. The Sixth Circuit recently reiterated the distinction drawn by Supreme Court between supervisor and coworker harassment:

the Court [in Burlington[*12]Industries] concluded that HN6employers may be held, subject to certain affirmative defenses, vicariously liable in supervisor sexual harassment cases. But under the Supreme Court's reasoning in [Burlington Industries], unlike a supervisor, a coworker does not have power or authority emanating from the employer over the victim . . . The victim of coworker sexual harassment must therefore prove negligence by the employer.

Courtney v. Landair Transport, Inc., 227 F.3d 559, 564 (6th Cir. 2000) (quoting Fenton v. HiSan, Inc., 174 F.3d 827 (6th Cir. 1999) (internal citations omitted)). The plain implication of a negligence standard for coworker harassment and vicarious liability for supervisor harassment is that it is more difficult for a plaintiff to establish an employer's liability for coworker harassment than for supervisor harassment. But, allowing an affirmative defense in cases of supervisor harassment, but not coworker harassment, would produce the anomalous result of making liability "stricter" in coworker cases than supervisor cases.

Furthermore, the Court's purpose in crafting the Burlington Industries' affirmative defense [*13] was to "accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees . . . ." 524 U.S. at 764 (emphasis added). The Court obviously recognized the benefits to both employees and employers of establishing clear reporting procedures, and created the affirmative defense as an incentive to do so. It would defy logic to hold that the Court intended the protection employers receive in the form of an affirmative defense to attach only to cases of supervisor harassment but not coworker harassment. The policy goals of Title VII which undergird the Burlington Industries' affirmative defense apply equally to both types of claims, and this Court holds the defense is available to employers in both contexts.

B.

The Court must next consider whether Defendant meets the elements of the affirmative defense established in Burlington Industries.

HN7Part (a) of that affirmative defense -- whether the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior -- "often [*14] will turn on whether the employer had in place an effective sexual harassment policy and complaint procedure." Sconce v. Tandy Corp., 9 F. Supp. 2d 773, 777 (W.D. Ky. 1998). Defendant obviously had in place a clearly explained policy of what constitutes impermissible workplace conduct, as well as procedures for reporting harassment to one central figure, the Equal Opportunity Officer, with authority to investigate and remedy abuses of company policy. Plaintiff was aware of this policy and these procedures, having read and initialed a copy of the policy statement upon beginning work for Defendant. Plaintiff presents no evidence to suggest that MMR would be unresponsive that the policy was an insincere one, or that the procedures were unlikely to be effective.

HN8Under part (b) of the affirmative defense -- whether the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise -- "an employee's failure to follow these procedures will often show that the employee behaved unreasonably." Id. It is undisputed that Plaintiff never on her own initiative contacted Defendant's EEO [*15] Officer, having done so only after Hayes first told Buvens of harassment at the Louisville work site, and Buvens in turn requested that she contact him. Plaintiff offers no explanation for why she never reported her complaint to Defendant's designated compliance official, and the Court declines to speculate on the issue. The Court does not minimize the seriousness of the abuse Plaintiff allegedly endured. But there is no indication that she was dissuaded or intimated from contacting the EEO Officer, and the intensity of the harassment does not excuse Plaintiff's duty to report any violation of MMR's policies, nor alter the fact that Defendant could not address problems of which it was unaware.

The Court therefore finds that Defendant provided preventive or corrective opportunities, and that Plaintiff had no reason for not taking advantage of these opportunities. On this basis alone, the Court might find that Plaintiff could not pursue a hostile work environment claim where she had failed to make use of an available complaint procedure.

C.

Regardless of the foregoing analysis, the Court finds a final reason that requires dismissal. The Court could assume that Plaintiff did use the [*16] complaint procedures. However when MMR's EEO compliance office first learned of the hostile work environment charges, it took immediate and appropriate corrective action. This has a significant legal consequence.

MMR's response once Buvens was notified of the harassment of Plaintiff was the very antithesis of indifference or unreasonableness. Upon speaking with Hayes late in the afternoon on February 16, Buvens acted literally within minutes to address the problem. Buvens did not wait for Plaintiff to contact him. He initiated contact and conducted an immediate interview and placed Plaintiff on paid leave pending the results of an investigation, which began the next morning. Within eight days all of the persons Plaintiff had named as her harassers had been either fired or transferred away from the Louisville job site. In sum, the Court finds that Defendant did not fail to implement prompt and appropriate corrective action.

The Court concludes that no reasonable jury could find from this evidence that MMR "manifested indifference or unreasonableness" or that its responses suggested "an attitude of permissiveness that amounts to discrimination." Blankenship v. Parke Care Centers, Inc., 123 F.3d at 873. [*17]

III.

Plaintiff's final claim is for constructive discharge. " HN9A finding of constructive discharge in this circuit requires an inquiry into both the objective feelings of an employee, and the intent of the employer." Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir. 1987). First, as to the feelings of the employee, "a constructive discharge exists if 'working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Id. at 636-37 (quoting Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982)). Prior to Buvens' investigation on February 17, 1999, Plaintiff allegedly was subjected to severe harassment. She did not, however, resign until after the corrective actions had been implemented. At that point, once all of Plaintiff's named harassers had been removed from the Louisville work site and Defendant assured her a safe environment, it would have been objectively unreasonable for Plaintiff to feel resignation was necessary to avoid continued abuse.

Moreover, this circuit "also require[s] some inquiry into the employer's intent and the reasonably foreseeable [*18] impact of its conduct on the employee." 819 F.2d at 637. Again, looking to the post-remedy period, the time most relevant to this inquiry, the Court finds "neither discriminatory intent nor foreseeable negative impact" on Plaintiff by Defendant. Id. Defendant did not intend for Plaintiff to discontinue her employment; to the contrary, it placed her on paid leave until after it had completed its investigation, and then specifically requested that she return to work. Plaintiff declined to do so, and only after Defendant did not accede to her demands for a transfer, raise, paid training, and relocation expenses. HN10Title VII requires employers to eradicate sexual discrimination, but it does not provide victims with the substantive right to a promotion and benefits. Once MMR had promptly and appropriately addressed the harassment of Plaintiff, the reasonably foreseeable impact of Defendant's conduct was her return to work. That she chose not to do so does not mean she was constructively discharged.

The Court will enter an order consistent with this Memorandum Opinion.

JOHN G. HEYBURN II

CHIEF JUDGE, U.S. DISTRICT COURT

ORDER

Defendant has moved for summary judgment. The Court [*19] has reviewed the memoranda of the parties as well as the testimony of record. Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that Defendant's motion for summary judgment is SUSTAINED and Plaintiff's complaint is DISMISSED WITH PREJUDICE.

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